Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Lorenzo Revoal, plaintiff, appeals from the trial court's order of September 26, 1983, dismissing his complaint against Bongi Cartage Company (Bongi) for employment discrimination. The issue on appeal is whether plaintiff was denied his constitutional right to due process when the Illinois Human Rights Commission (IHRC) dismissed his charge for lack of jurisdiction, which resulted from administrative inaction within the statutory period.
On July 13, 1975, plaintiff Revoal applied for a position as pile driver with defendant Bongi. He was not hired. On November 7, 1975, Revoal filed a complaint with the Fair Employment Practices Commission (FEPC) charging that he had been refused employment on racial grounds in contravention of the Fair Employment Practices Act (Ill. Rev. Stat. 1975, ch. 48, par. 851 et seq.).
On October 19, 1977, approximately two years after Revoal's complaint had been filed, the FEPC issued a "Notice of Substantial Evidence." The FEPC determined that there was substantial evidence in support of Revoal's complaint against Bongi. The record is silent as to what occurred during the intervening months, but on August 17, 1978, the FEPC issued a "Complaint of Unfair Employment Practices" against Bongi. On November 29, 1978, the FEPC notified Revoal of his right to sue Bongi pursuant to Public Act 80-1455 *fn1 (now codified as Ill. Rev. Stat. 1981, ch. 68, par. 9-102(B)). The FEPC advised Revoal that pursuant to the legislature's action he had two years following receipt of the "Notice of Substantial Evidence" in which to file a civil suit against Bongi.
On August 24, 1979, an evidentiary hearing was held on Revoal's charge against Bongi. On March 21, 1980, Bongi moved to dismiss the charge on jurisdictional grounds. On June 20, 1980, an administrative law judge issued a recommended order and decision, determining that the FEPC had lost jurisdiction over Revoal's charge because of its failure to issue a timely complaint. The judge recommended dismissal of the charge against Bongi; in so doing, he noted that the dismissal resulted from factors beyond the control of Revoal.
In October 1980, Revoal filed a complaint for declaratory judgment and injunctive and other relief in the Chancery Division of the Circuit Court of Cook County. On December 3, 1980, during the pendency of the chancery action, the Illinois Human Rights Commission *fn2 (successor to the FEPC) entered an order affirming the recommendation of the administrative law judge and the FEPC's complaint against Bongi was dismissed. No review of the IHRC's dismissal order was taken.
On May 12, 1982, Revoal petitioned the IHRC for reconsideration of its December 1980 order dismissing the complaint against Bongi. On July 2, 1982, the IHRC denied the petition, finding it untimely.
On July 30, 1982, Revoal filed a complaint at law (law action) in the circuit court of Cook County. He named as defendants Bongi, the IHRC and the individual commissioners who issued the July 2, 1982, order denying his petition for reconsideration. Count I of the complaint sought administrative review of the IHRC's denial of his petition for reconsideration (the May 12, 1982, petition); count II purported to be a class action and sought reinstatement and adjudication by the IHRC of all claims it had dismissed because of its own failure to act in a timely manner. The pending chancery action was consolidated with the law action on February 3, 1983, pursuant to an agreement between Revoal and Bongi.
On June 23, 1983, the trial judge dismissed with prejudice count I of the law action, but allowed Revoal 28 days to amend count II. The amended complaint eliminated the class action allegations but named the IHRC as a defendant. The complaint asked the circuit court to order the IHRC to proceed administratively with Revoal's charge against Bongi.
On September 26, 1983, the circuit court ruled that Revoal's failure to seek a timely administrative review of the IHRC's December 3, 1980, order barred the action at law. The circuit court then dismissed Revoal's consolidated action.
On appeal, both Bongi and the IHRC submitted briefs and argued as appellees. However, the IHRC took the position that although Revoal was not entitled to review of the law action, he should be granted a hearing on the merits of the chancery action.
Bongi urges us to affirm the trial court's dismissal of Revoal's consolidated actions because they were an improper collateral attack on the IHRC's dismissal order of December 3, 1980. Although the complaint purported to seek review of the IHRC's denial of Revoal's petition to reconsider, it in fact sought reversal of the prior order of December 3, 1980. Bongi cites section 3-102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3-102) as expressly barring Revoal's consolidated action in the circuit court. Bongi points out that section 3-102 of the Code mandates that review of the IHRC's order of December 3, 1980, had to have been sought within 35 days of the issuance of the order.
Defendant IHRC argues that Revoal's law action was properly dismissed by the circuit court since he did not seek review of the IHRC's order of December 3, 1980, within the statutorily required period, either before the full IHRC or later by the circuit court. Revoal's action at law, regardless of the manner in which it is framed, was an attempt to gain judicial review of the IHRC's order ...